MANMATHA NATH Vs. RAKHAL CHANDRA MANDAL

JUDGEMENT

(1.) This is an appeal by the defendant and arises out of a suit for declaration of the plaintiffs right of way over a piece of land described in the plaint and for removal of the obstruction placed at one end of it by the defendant. There is also a prayer for perpetual injunction for restraining the defendant from obstructing the said pathway. The defence of the defendant to the suit was that there was no such pathway as alleged in the plaint, nor has the right been exercised for a sufficiently long time in order to entitle the plaintiffs to acquire right either by prescription or under the other heads of claim to which I shall presently refer. The Munsif decreed the plaintiffs suit declaring the plaintiffs right of easement as claimed in the plaint and directing that the obstruction be removed in execution of the decree. The Munsif decreed in full the plaintiffs claim. On appeal the Additional District Judge has modified the decree by restricting the right to use the pathway as a footpath. He has disallowed the claim of the plaintiffs to use the pathway as a cart track.

(2.) Against this decision of the learned Additional District Judge of the 24-Pargannas modifying the judgment of the Munsif the present appeal has been brought, and three grounds have been taken by Mr. Amarendra Nath Bose who appears for the appellant. The first ground which he takes is that the appellant has been considerably prejudiced by the Courts proceeding on the footing that the plaintiffs claimed a right to this way on the basis of immemorial user. His contention is that if it had been so pleaded he might have made suitable defences to the claim. It becomes therefore necessary to examine the relevant paragraph of the plaint to see if the claim was based on user from which it might be inferred that the user was much in excess of the period of 20 years prescribed by the limitation Act, or in other words, whether there were allegations in the plaint which would lead to the suggestion that the plaintiffs were basing their claim apart from prescription also on immemorial user. Para. 5 is the paragraph which gives the statement of facts on which the cause of action in the present suit is based. In the first part of that paragraph it is stated that the plaintiffs and their ancestors have been using the disputed land as a pathway as of right without interruption for 40 or 50 years, and having thus used it they have acquired a right of way over the disputed land.

(3.) It is stated in the second part that they have acquired also a right to this land as an easement of necessity; and thirdly it is stated that they having used the land at any rate for much in excess of 20 years without interruption and in their own right they have acquired easement of way over the disputed land. It is contended for the appellant that although the claim is rested on three heads the first and the third heads merely allege facts which suggest that the claim is founded on prescription and not on immemorial user. It is true and I think the comment is a fair one that the plaint is ill-drafted and does not in terms suggest that the right was founded on immemorial user. But to my mind it seems difficult to understand the three heads of claim unless one reads the first head as referring to facts which would lead to the inference of immemorial user from which a grant may be presumed. There is no point in stating that the land had been used by the plaintiffs and their ancestors for a period of 40 or 50 years unless it was intended to convey the impression that apart from the right which is acquired by user of 20 years they have acquired a right by very long user. The learned Judge while dealing with this question says this with reference to the argument that no case of grant was made in the plaint: but the case of long user was certainly made though the words "time immemoral" as the learned Munsif remarks were not used, and the existence of an ancient right derived from grant or otherwise is a presumption.